Citation Nr: 0420646
Decision Date: 07/29/04 Archive Date: 08/05/04
DOCKET NO. 02-11 039A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for bilateral defective
hearing.
2. Entitlement to service connection for memory loss,
claimed as the result of an undiagnosed illness.
3. Entitlement to service connection for a sleep/fatigue
disorder, claimed as the result of an undiagnosed illness.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from November 1987 to
November 1991, with service in Southwest Asia from September
to November 1990, and from January to March 1991.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a March 2001 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem,
North Carolina.
Based on a review of the veteran's claims folder, it would
appear that he has failed to perfect his appeal as to the
issues of service connection for post-traumatic stress
disorder, and a skin rash, claimed as the result of an
undiagnosed illness. Accordingly, the sole issues remaining
for appellate review are those listed on the title page of
this decision.
For reasons which will become apparent, the issues of service
connection for memory loss and a sleep/fatigue disorder,
claimed as the result of an undiagnosed illness, are being
REMANDED to the RO via the Appeals Management Center (AMC) in
Washington, D.C. The VA will notify you if further action is
required on your part.
FINDINGS OF FACT
A chronic hearing loss is now shown to have been present in
service or for many years thereafter, nor is it the result of
any incident or incidents of the veteran's period of active
military service.
CONCLUSION OF LAW
Chronic defective hearing was not incurred in or aggravated
by active military service. 38 U.S.C.A. §§ 1110, 1131 (West
2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. This liberalizing law is applicable to this appeal.
The Act and implementing regulations essentially provides
that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim and also includes new
notification provisions.
In the recently decided case of Pelegrini v. Principi, (No.
01-944, June 24, 2004), referred to as Pelegrini II, the
United States Court of Appeals for Veterans Claims (Court)
essentially held that VA must provide notice "upon receipt"
and "when" mandate that notice precede an initial
unfavorable AOJ (agency of original jurisdiction) decision on
a service-connection claim. For the reasons enumerated
below, there is no indication that there is any prejudice to
the veteran by the order of the events in this case. See
Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the
sequence of events is not shown to have any effect on the
case, or to cause injury to the veteran. As such, the Board
concludes that any such error is harmless, and does not
prohibit consideration of this matter on the merits. See ATD
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998);
Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir.
1985).
In the case at hand, the RO provided notice to the veteran
(in correspondence of April 2001) regarding the duty to
notify him of the evidence he must provide, and of the
evidence which the VA would obtain on his behalf. Additional
correspondence (in February 2004) provided the veteran with
the opportunity to submit evidence, and provided notice of
who was responsible for securing the evidence. The veteran
was also provided a Statement of the Case, dated in August
2002, apprising him of various VA actions in this case.
Furthermore, the Board notes that the VA has made reasonable
efforts to obtain relevant records adequately identified by
the veteran. In that regard, the Board notes that the
evidence includes VA treatment records and examination
reports. Under the facts of this case, "the record has been
fully developed" with respect to the issue of service
connection for defective hearing, and "it is difficult to
discern what additional guidance the VA could have provided
to the veteran regarding what further evidence he could
submit to substantiate his claim." Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004). Thus, adjudication of this claim
poses no risk of prejudice to the veteran.
Factual Background
During the course of VA outpatient treatment in July 1999,
the veteran complained of right ear pain of approximately 1
to 2 years' duration. Reportedly, the veteran had been
swimming. When further questioned, the veteran gave a
history of ear surgery. Physical examination of the
veteran's right ear showed the external auditory canal to be
red, with greenish "mucousy" material covering most of the
tympanic membrane. Also noted was the presence of pain on
tragal traction. The clinical impression was otitis externa.
Correspondence from the National Personnel Records Center
dated in June 2000 was to the effect that the veteran's
medical records were "not a matter of record."
In an Administrative Decision of August 2000, it was noted
that all requests and telephonic contacts had failed to
produce the veteran's service medical records. Additionally
noted was that further efforts to obtain those records would
be futile. Based on the facts shown, it was concluded that
the veteran's service medical records were unavailable.
In correspondence from the veteran's mother-in-law, it was
noted that the veteran could not hear, and that he repeatedly
asked for clarification of statements during conversations.
Correspondence from the veteran's mother dated in late August
2000 was to the effect that, over the course of the past few
years, she had noticed that certain tones and/or sounds were
a "problem" for the veteran. Also noted was that, at the
time the veteran enlisted in service, he was accepted
"without any restrictions."
During the course of VA outpatient treatment in August 2000,
the veteran complained of, among other things, hearing loss.
On physical examination, the veteran's external auditory
canals were clear, and his auricles normal. Further
examination revealed both tympanic membranes to be intact,
without evidence of inflammation or scarring.
A VA audiometric examination in January 2001 revealed pure
tone air conduction threshold levels, in decibels, as
follows:
HERTZ
250
500
1000
2000
3000
4000
8000
RIGHT
30
35
40
20
30
30
25
LEFT
15
20
20
15
20
15
30
Speech discrimination ability in the veteran's right ear was
100 percent, with 98 percent discrimination ability in the
left ear. The pertinent diagnosis was mild conductive
hearing loss in the right ear, and hearing within normal
limits in the left ear.
On VA otologic examination conducted in March 2001, both of
the veteran's auricles were normal. The external auditory
canals were clear, with no evidence of any lesions or masses.
Both tympanic membranes were clear, but somewhat dull, and
there was no evidence of fluid or perforations. Noted at the
time of examination was that there was some question of an
old tympanic membrane perforation on the right. Also noted
was that the Weber test lateralized to the veteran's right
ear. The pertinent diagnosis was right-sided conductive
hearing loss, with a normal left ear, and a questionable old
tympanic membrane perforation on the right.
At the time of VA outpatient treatment in April 2001, it was
noted that the veteran was being seen for a hearing
evaluation based on complaints of hearing loss of several
years' duration. When questioned, the veteran denied
problems with vertigo, though he gave a positive history of
noise exposure. Reportedly, a complete audiologic evaluation
conducted in January 2001 had been consistent with a mild
conductive hearing loss on the right and normal hearing on
the left, as well as excellent word discrimination
bilaterally. A current hearing recheck showed no change in
thresholds since the time of the previous audiometric
examination.
VA outpatient treatment records covering the period from
April 2002 to March 2003 show treatment during that time for
various ear-related problems. In early April 2002, the
veteran was referred to the audiology clinic with a history
of conductive hearing loss. When questioned, the veteran
denied any drainage from his ears, though he did complain of
certain sinus-related problems. Reportedly, the veteran had
been exposed to "chronic noise" during the Gulf War. On
physical examination, the veteran's left tympanic membrane
was severely retracted, with erosion of the scutum, but no
debris. There was debris in the right external auditory
canal consistent with cholesteatoma, as well as severe
erosion of the scutum. The Weber test lateralized to the
right. The clinic impression was right cholesteatoma.
In an entry of March 2003, it was noted that the veteran was
being seen for follow-up of a right tympanomastoidectomy.
Physical examination revealed that the packing inserted
during surgery had slowly dissolved, and that the tympanic
membrane was intact, with no evidence of perforation.
Analysis
The veteran in this case seeks service connection for
bilateral defective hearing. In that regard, service
connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and an organic disease of
the nervous system, such as sensorineural hearing loss,
becomes manifest to the a degree of 10 percent within date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2003).
The Board notes that, for the purpose of applying the laws
administered by the VA, impaired hearing is considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2,000, 3,000, or 4,000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1,000, 2,000, 3,000, or
4,000 Hertz are 26 decibels or greater; or when speech
recognition scores utilizing the Maryland CNC test are less
than 94 percent. 38 C.F.R. § 3.385 (2003).
In the present case, notwithstanding the RO's best efforts,
service medical records have proven to be unavailable. The
earliest clinical indication of the presence of defective
hearing is revealed by a VA audiometric examination dated in
January 2001, more than nine years following the veteran's
discharge from service, at which time there was noted a mild
conductive hearing loss in the right ear. While in April
2002, it was noted that the veteran had been exposed to
"chronic noise" during the Persian Gulf War, there is no
indication that such "exposure" resulted in the development
of a chronic (sensorineural) hearing loss. Rather, pertinent
evidence of record is to the effect that the veteran's right
ear hearing loss was the result of a cholesteatoma, for which
he later underwent surgery. Under the circumstances, the
Board is unable to reasonably associate the veteran's hearing
loss, first persuasively documented many years following
service discharge, with any incident or incidents of his
period of active military service. Accordingly, service
connection for defective hearing must be denied.
ORDER
Service connection for bilateral defective hearing is denied.
REMAND
In addition to the aforementioned, the veteran in this case
seeks service connection for memory loss and a sleep/fatigue
disorder, claimed as the result of an undiagnosed illness.
In that regard, at the time of a VA general medical
examination in September 2000, it was noted that, as far as
could be determined, the veteran had not yet undergone any
sleep studies. While during the course of a VA neuro-sleep
disorder consultation in February 2001, it was noted that the
veteran was to be scheduled for an overnight sleep study, as
well as a daytime sleep latency test, reports of such testing
are not at this time a part of the veteran's claims folder.
Accordingly, further development will be undertaken prior to
a final adjudication of the veteran's current claims.
The Board further notes that effective June 10, 2003, new
regulations governing the award of compensation benefits for
certain chronic disabilities incurred by veterans of the
Persian Gulf War were implemented. Obviously, as of the time
of the issuance of a Statement of the Case in August 2002,
neither the veteran or his representative had yet been
furnished with those regulations. Nor has the veteran been
afforded the opportunity to have his claims adjudicated under
those newly revised regulations. Such action is necessary in
order to satisfy the requirements of due process of law.
In light of the aforementioned, the case is REMANDED to the
RO for the following actions:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2001); 38 C.F.R. § 3.159) have been
completed.
2. The RO should contact the veteran and
request the names, addresses and
approximate date of treatment for any
health care providers, VA or non-VA,
including any inpatient or outpatient
treatment records, including the
aforementioned reports of an overnight
sleep study and daytime sleep latency
test, and specifically including any and
all records subsequent to March 2003, the
date of the most recent evidence of
record, should be obtained and
incorporated in the claims folder. After
the veteran has signed the appropriate
releases, those records should be obtained
and associated with the claims folder.
All attempts to procure records should be
documented in the file. If the RO cannot
obtained records identified by the
veteran, a written notation to that effect
should be placed in the file. The veteran
and his representative are to be notified
of unsuccessful efforts in this regard,
and given the opportunity to provide any
missing records themselves.
3. Should the aforementioned reports
prove unavailable, the veteran should be
afforded an additional VA overnight sleep
study and daytime sleep latency test in
order to more accurately determine the
exact nature and etiology of his claimed
sleep/fatigue disorder. All pertinent
symptomatology and findings should be
reported in detail, and all appropriate
studies should be performed. The claims
folder and a separate copy of this REMAND
must be made available to and reviewed by
the examiner(s) prior to completion of
the examination(s). Moreover, a notation
to the effect that this record review
took place should be included in the
examination report(s).
4. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications must be associated with the
claims folder. The veteran is hereby
advised that failure to report for a
scheduled VA examination without good
cause shown may have adverse effects on
his claim.
5. The veteran and his representative
should then be furnished with a copy of
the revised regulations governing the
award of compensation benefits for
certain "qualifying chronic disabilities"
which became effective June 10, 2003.
Those revised regulations should
specifically include a copy of all
changes to 38 C.F.R. § 3.317 which became
effective on that date.
6. The RO should then review the
veteran's claims for service connection
for memory loss and a sleep/fatigue
disorder, claimed as the result of an
undiagnosed illness. Should the benefits
sought on appeal remain denied, the
veteran and his representative should be
provided with a Supplemental Statement of
the Case (SSOC). The SSOC must contain
notice of all relevant action taken on
the claims for benefits since the
Statement of the Case in August 2002. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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